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Category: Legal History

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law HistoryAn image of an old-fashioned barn with a broom and bucket.

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law History

Published 26th June 2024

by Dr. Alice Krzanich, Lecturer in Law and Legal History, University of Aberdeen

The history of employment law in Scotland is an under-researched topic. While some aspects of law and labour in Scotland’s past have been examined, others have been barely touched at all. Moreover, while many elements of employment law in modern-day Scotland are similar or identical to those in England and Wales, Scots law has its own distinct history concerning labour and employment. This is due to Scotland’s unique legal institutions and juristic traditions. There is consequently a need to investigate the history of employment law in Scotland more fully and to tease out some of the themes of its development.

This blog entry illustrates some of that distinct legal heritage by examining the employment of domestic servants in early nineteenth-century Scotland. In particular, it shows how Scots contract law regulating domestic service shared certain analytical features with the law of leases in the period c. 1800–1850. This may seem surprising, as the employment of domestic servants may (outwardly at least) seem to have little directly in common with leases of property. Yet this analysis will reveal commonalities between the two, resulting from the influence of Roman law alongside customary practices. Moreover, the law of leases was not the only area of private law that the contract of domestic service shared connections with in the nineteenth century; it was also often conceived as part of the law of familial obligations. This raises further questions about the nature of historical Scottish master-servant law, which this analysis will highlight.

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Kinghorn v Wood and the origins of trusts in ScotlandEdinburgh 1600

Kinghorn v Wood and the origins of trusts in Scotland

Published 9th October 2023

by León Carmona Fontaine, PhD Student at Edinburgh Law School*

If there was a Scottish case from the 1620s in which a Scottish court had decided that there was a sham trust, it would be surprising and significant for both historical and comparative reasons. For a start, Scots lawyers usually consider that a distinct institution known as a trust appeared in Scotland in the late 17th century, and more decisively in the 18th century.[1] Second, sham trusts are usually seen as a recent English legal development. The term ‘sham’ gained a defined legal meaning in England between the late 19th century and the second half of the 20th century (Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802),[2] and the first case in which an English court found a declaration of trust to be a sham dates from the last decade of the 20th century (Midland Bank plc v Wyatt [1997] 1 BCLC 242). Finally, Scottish courts have occasionally applied the doctrine of sham transactions, but usually by reference to modern English authorities rather than Scottish ones.

Yet, Kinghorn v Wood (1626) Mor. 5072 seems to suggest that both trusts and sham trusts existed in Scotland as early as the early 17th century. Naturally, the trust in question did not go by the name of ‘trust’, and the ‘sham’ was not yet named ‘sham’.  The word ‘trust’ started to be used in Scotland only in the course of the 17th century,[3] and the word ‘sham’ had not yet originated in the English-speaking world.[4] In substance, however, the court found an arrangement that we would nowadays call a trust to be a sham as that term has come to be understood.

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Six things you should know about Stair’s theory of contract law.cover Stephen Bogle book

Six things you should know about Stair’s theory of contract law.

Published 5th July 2023

by Dr Stephen Bogle, Senior Lecturer in Private Law, University of Glasgow

Contract before the Enlightenment: the ideas of James Dalrymple, Viscount Stair, 1619-1695 was published in March this year by Oxford University Press. It investigates the intellectual impulses which inspired Viscount Stair’s transformative account of the law of contract. In his wide-ranging, Institutions of the Law of Scotland first published in 1681,[1] Stair offers a specific title on ‘conventional obligations’, which includes an examination of contracts, unilateral promises, firm offers, acceptance, and third-party contracts, as well as remedies, followed by separate titles on nominate contracts (loan, mandate custody, sale, hire and society). It is seen as foundational to the law of contract in Scotland. As Martin Hogg said in his pioneering study of Stair, ‘Any understanding of the nature of the Scots law of obligations, including the theory of Scots contract law, must begin with the Institutions of the Law of Scotland.’[2] The book, therefore, offers a fresh examination of what inspired Stair to place the law of contract on a new philosophical basis. This post gives a summary of the book’s central themes. In other words, it tells you six things you should know about Stair’s account of contract law.

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Edinburgh Studies in Law Publication: Jørn Øyrehagen Sunde and Andrew R C Simpson (eds), Comparative Perspectives in Scottish and Norwegian Legal History, Trade and Seafaring, 1200-1800

Edinburgh Studies in Law Publication: Jørn Øyrehagen Sunde and Andrew R C Simpson (eds), Comparative Perspectives in Scottish and Norwegian Legal History, Trade and Seafaring, 1200-1800

Published 21st March 2023

By Andrew R C Simpson, Professor in Scots Private Law, School of Law, University of Aberdeen

Between 20th and 21st August 2019, in the wonderful setting of the Hardangerfjord in Norway, a group of scholars gathered to compare aspects of Norwegian and Scottish history and legal history. The seminar was organised by Professor Jørn Sunde, and generously supported by the Barony Rosendal and the Stiftinga Hardanger og Voss Museum. It approached comparison of the histories of Norway and Scotland by asking speakers to give papers on historical phenomena or themes that seemed – prima facie – to be common to both nations. For example, Dauvit Broun (Glasgow) and Erik Opsahl (Trondheim) were asked to speak on the Treaty of Perth of 1266, which was agreed between Norway and Scotland in the wake of conflict over the Hebrides. Other themes included the development of administrative structures in Scotland and Norway during the thirteenth and fourteenth centuries; the development of apparently common town laws across both kingdoms; and migration across the North Sea and the regulation of trade (particularly in timber) between the two nations during the early modern period. The papers presented constituted a sufficiently illuminating exercise in comparative legal history as to merit publication in a volume. The result is the book Comparative Perspectives in Norwegian Legal History, Trade and Seafaring, 1200-1800, which is shortly to be published by Edinburgh University Press in the Edinburgh Studies in Law series.

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Nation-Building, Capital Markets and Meaning of le Franc Or

Nation-Building, Capital Markets and Meaning of le Franc Or

Published 2nd September 2022

by David Fox, Professor of Common Law, University of Edinburgh*

The Case of the Serbian Loans issued in France (1929) 56 J. Dr. Int’l 977 was one the earliest and most influential of the inter-war cases on the interpretation of gold clauses in long-term bond contracts.  As a decision of the Permanent Court of International Justice in the Hague, its reasoning influenced decisions in the French, English and United States courts.  It established that a payment clause stipulating for payment of gold coin would be interpreted as creating an obligation to pay legal tender money corresponding to the gold value of the money owed by the issuer of the bond.

Now that all world currencies have broken their link with gold, that point of law is unlikely ever to arise again.  But the case has an enduring significance beyond the superseded point it stands for.  The sparse legal record offers a glimpse into important historical events of the early twentieth century, and the way they impinged on the financial arrangements of the governments and investors of the time.  We see financial deals being done by an emerging nation state and the imperial Great Powers of the era.  Less comfortably, we see an example of the inevitable link between finance and war in a time when notions of “ethical investment” were still a century away from being articulated.

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